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eldavojohn writes "It's a classic case that comes up when dealing with patents. A hospital's research on the donated brains of deceased children has been in limbo for three years because of a challenge from a patent holder. The double-edged sword of patents that spurred investment into the field will also cause chilling effects on research like the case of the Children's Hospital of Orange County. They've now been forced to shift the money from the lab to lawyers in order to deal with this ongoing patent dispute over a technique that was developed to extract stem cells at the Salk Institute. Unfortunately the Salk Institute failed to patent the technology, so a company named StemCells happily had it approved. The real disheartening news is that CHOC's Dr. Philip H. Schwartz — the doctor collecting the cells — was one of the original researchers who helped developed this technique at the Salk Institute. Now he can't even use the technique he helped create. Schwartz has since been instructed not to publicly discuss the case further. Research interests are clashing with commercial interests in a classic case that causes one to wonder if patents surrounding medical techniques like this stretch too far. As for the people that donated their dead child's brain to research, those valuable stem cell cultures have been kept in storage instead of being disseminated to research labs (which desperately need them) across the country."

Basically what you are saying is that the other person was saying that if the doctors held the patent then they would have the ability to hold up uptake of the technology they developed.

That is idiotic. Of course they could, but that totally ignores every single aspect of this issue. Yes the doctors if they were the patent holders could be as bad as the patent trolls, but it is the doctors who developed the tech who are the ones complaining about not being ab

Knowingly leaving out the real inventors will get them more than just a slap on the wrist...

Yes, but only after years of legal battles. They'll need the first court to overturn the patent before they would be able to go back after them for damages. That's the problem here... Patents are being blindly issued, only looking to see if it was patented before. Then, it's up to the courts to determine the validity of the patent... That's horrible for the little guy, who chances are doesn't have the money to pay for the legal fees. So the only people the current patent system helps, are the big companies and the courts.

So the only people the current patent system helps, are the big companies and the courts.

Perhaps, but it would appear that the real problem is the incompetent assgobblins holed up in the US Patent and Trademark Orifice. I think a good first step would be to introduce compulsory IQ testing at the USPTO and lay off employees scoring below seventy, confiscating all of their square pegs and round holes. The remaining six patent analysts should be offered early retirement with full benefits and a conciliatory "years of service" plaque.

How patently fair. The intellectual property laws are out there for everyone to see and play by, and the public has benefited from this.

The process was apparently invented independently and simultaneously by two groups, only one of which (StemCells) filed a patent for it. If Schwartz had merely published his work first (or filed a patent for it first, which is tantamount to publishing), he could have blocked StemCell from obtaining a patent.

If I had mod points, this should really be bumped up. He could have shown prior art if he published, but he did not. I disagree that the results were fair (I never liked the 'first to the patent office' rule), but there was something the guy could have done.

Bullshit. The method was easy enough that multiple people have independently discovered it and it is now locked down so that nobody else can use it, at least without paying a worthless person who didn't even invent anything.

A simple, usable method for something was easily available and in use, now it is not. The public lost, and big.

People worldwide can now build on that technology, either through licensing of it or by trying to find work-arounds.

What kind of retard are you that you think it's going to be easier? The easy method is now taken, to work-around it they're going to have to needlessly complicate what should be

Looks like both groups were developing it at the same time. In cases where you have two groups going after the same research, the first one to patent gets the rights. So I am guessing we can not call prior art on this one.

Dr. Frankenstein: [To Igor] Igor, may I speak to you for a moment?Igor: Of course.Dr. Frankenstein: Sit down, won't you?Igor: Thank you. [Igor sits on the floor]Dr. Frankenstein: No no, up here.Igor: Thank you. [Igor sits on a chair]Dr. Frankenstein: Now... that brain that you gave me... was it Hans Delbruck's?Igor: [Crosses arms] No.Dr. Frankenstein: [Holds up hand] Ah. Good. Uh... would you mind telling me... whose brain... I did put in?Igor: And you won't be angry?Dr. Frankenstein: I will not be angry.Ig

How can StemCells be granted a patent for this technique? It would seem that Salk Institute can prove that it is prior art (i.e. that they utilized this technique prior to any patent claims by StemCells), invalidating the patent claim by StemCells.

Actually when filing for the patent StemCells should have had to prove originality of their idea. If their patent is found invalidated hopefully they will be forced to compensate for legal fees, but since many of these companies are small shell companies made to collect profit and compartmentalize risk they will have just enough assets for whatever their purpose is and no more so wont be able to pay any thing to the courts if they loose the case.

Forced to compensate? These companies are puppets of bigger groups of people with money,and usually lawyers working purely on percentage of winnings only. These businesses have by nature NO money. They are just a shell game so when things go badly for them the owners just setup another company, transfer a few patents into it, and begin the process again. Hell, I can't understand for the life of me, but.\ won't even post anything up about my submission about a troll pulling the same thing against almost eve

I saw a similar story (though of a much smaller scale). A tow-truck towed the wrong car, badly, and then abandoned it ruined on the side of the road when the error was discovered. By the time the owner found their vehicle a few hours later the towing company was dissolved. When the show investigated the owner had had many such companies.

This is why I advocate removing the so-called corporate veil. I feel that unless you actively pursue honest dealings in your company (forward all transactions to auditors, a

I don't see any proof of that in the article. The article implies that it was lack of initiative by Salk Institute that allowed StemCells to secure a patent on the technique: "The dispute comes down to access to a technique that Schwartz helped develop at the Salk Institute but the institute failed to patent. StemCells did."
Can you provide a citation that gives a detailed chronology?
In any case, Weissman comes off as a huge hypocrite by freezing out a research group with no commercial interests --- i.e., on the one hand he'll advocate for freedom to carry out this research, while simultaneously stymieing basic, non-commercial research with the other. This is what really bothers me about patents: They can enable commercial interests to erect a fence and keep out any public research in a potentially large area of science. Commercial interests can often secure funds to pay for licensing the patents. This usually is not in the budget for publicly funded research groups.
(My preview shows this appearing as a wall of text, even though I have included white space.)

This may seem obvioud to you and me, but many people don't get it. Stem cell research has the potential to CURE many medical problems. That's CURE, as in permanently fix them. Most of "Big Pharma" makes most of their revenue from the boat load of maintenance medications that they ship out every day to TREAT THE SYMPTOMS of the many "chronic" and "incurable" diseases that are out there. My dad has taken a handful of pills every day of his life for the last 20 years to keep the prostate cancer that he go

How many thousands of dollars per patent, do you expect patent examiners to spend in their search for prior art?

As many as it takes to find it if it exists. But the bill should be footed by the person applying for the patent, not by the taxpayer.

As a side benefit, forcing the person to apply to foot the bill might just slow this "Try for a patent on EVERYTHING!!!!" mania way down. You'd see people thinking very hard about whether it's worthwhile to apply for a patent, with the possible risk of spending tens

How many thousands of dollars per patent, do you expect patent examiners to spend in their search for prior art?

As many as it takes to find it if it exists.

That is meaningless rethoric. No matter how carefully you've searched through all existing publications from the entire recorded human history, it's always possible that you'd find something if you simply searched again. Since there's no upper bound to how many times you should check, there's no upper bound to how much money you can spend searching.

Oh, yeah, because after choosing to kill a bunch of people (well, assholes, but still) really I would totally be stopped by the fact that my specific preferred gun type is outlawed in the area where killing must take place.

Yes judge, I killed these 20 motherfuckers with an illegal weapon. I was going to kill them with a legal one, but decided to be an outlaw instead.

The point of patents is that if you come up with something cool, the patent protects your ability to make a living off of having done so both through marketing it yourself and through licensing it to others.

It doesn't often work that way in practice. Patents are used to prevent competition instead of encouraging it, and licensing fees are used to determine who can and who cannot practically work with the technology. It's yet another case where the basic idea was sound but the implementation is lacking. A major issue has been that the scientific and corporate landscape has changed significantly over time, while the patent system has not adapted adequately.

If you tell people your snake oil kills HIV, and you have a patent on snake oil, and using snake oil to kill HIV, and dozens of other things, then you can charge "licensing" fees for people that want to use it. You just made it impossible for any researcher to disprove any of your claims, except by statistics, which would take YEARS to get enough numbers to show significance. (if you release those numbers at all!)

This is a great example of why defensive patents are necessary. The inventor can obtain the patents, then grant anyone a free, perpetual license to use the technology. Hopefully, the doctor will win the lawsuit based on his work in creating the process but it's pretty crazy that it's not certain that he can win unless his creative process was public enough to constitute prior art.

The solution to over-patenting isn't more patents. That would just be shoveling more money to lawyers and away from doing research or curing people. The solutions here seem to be to either allow nonprofits and universities to use patents for basic research, or to shorten patent lengths. A 20 year patent seems ridiculous when product lifecycles and discoveries are moving much more quickly.

In this case, I think a fast-track process to get an obviously wrongly awarded patent invalidated would suffice. I would toss in treble damages awarded to the original inventor (if they're the one asking for the invalidation), to punish patent trolls trying to patent something someone else invented, but that's just me.

It is unclear that StemCells was wrongly awarded its patent. From the TFA:

The roots of the conflict go back several years. While at Salk Institute, Schwartz created a new application out of an existing technique: deriving neural stem cells from post-mortem brains, then growing them in culture. At the same time, StemCells was doing similar things.

The solution here is not to allow monopoly rights at all. If there is a desperate desire to divert money towards specific fields or specific holders of certain papers, then just outright pay them from whatever public purse whose politicos they control, and leave the actual economy and business of getting jobs done alone.

Patents and other IPR seems like a good idea to some because their costs are not accounted for, but there is no macroeconomic difference between the privatized taxation rig

A 20 year patent seems ridiculous when product lifecycles and discoveries are moving much more quickly.

Definitely. In some industries -- practically anything electronics-based, for example -- a five year patent would probably be excessive. Patents would be a lot more productive if they were scaled to the rate of change in their industry, and perhaps more importantly, could be invalidated if it was shown that a particular patent was causing irreparable harm to individuals, as might be the case where someone is denied medical care as a result.

The patent abuses that the current system fosters used to have me firmly against the system as a whole. Now, the patent system is what writes my paycheck.

I'm doing PhD work at a very large US research university. Our patent portfolio goes back something like 80 years, and the money from licensing those patents was invested back into the research endowment. Today, we can fund thousands of graduate researchers due to that research endowment, all built on the money from licensing stuff discovered here.

How nice that they're allowed to spend ten to twenty thousand dollars applying for a patent that they don't intend to use. All in an effort to prevent what is basically being blackmailed by a company that has not only stolen your ideas from you, but also from everyone else who would do work in the field. What a wonderful, effective system we have.

Coincidentally, the Salk Institute was founded by Jonas Salk [wikipedia.org], the saint-like figure who developed the polio vaccine in the 1950s and then intentionally did not patent it.

When news of the vaccine's success was made public on April 12, 1955, Salk was hailed as a "miracle worker", and the day "almost became a national holiday." His sole focus had been to develop a safe and effective vaccine as rapidly as possible, with no interest in personal profit. When he was asked in a televised interview who owned the pat

Research is a noncommercial endeavour, and as such patent infringement cannot occur. What these "researchers" were trying to do with these brains was something akin to a commercial endeavour, whereby the can extract the stem cells within the dead children's brains, grow them as eternal cell culture and cell these renewing stem cell cultures to real researchers. If they were performing non-profit research, they could use whatever technique the wanted to... it's like a hobby.

You can go tinker with your car and fabricate a new intake manifold on your own to make it go faster, and not be afraid of being sued for patent infringement because you used some company's design for an intake manifold. When you start racing professionally with that car seeking sponsorships and purses, then you've committed patent infringement.

Research is a noncommercial endeavour, and as such patent infringement cannot occur.

You are not a lawyer (and neither am I). Granting patents is one of congress's 18 enumerated powers. Congress can grant patents that have nothing to do with commerce. In fact, patent law spells out four exclusive rights the patent holder has. A patent holder can stop other people from:

Making

Using

Selling

Offering for sale

the product or process that is described in the patent claims. There does not need to be any co

So to date this life-giving science has been encumbered by christian fundamentalists and
unsavory patent trolls. If my america pedals itself any faster into the dark ages, ill have to resort to public flagellation as a response to the upcoming hurricane season.

The research in question was never effected by Christian fundamentalists since it does not involve embryonic stem cells. Of course that is true of all of the promising stem cell research. Christians do not have a problem with stem cell research, Christians have a problem with embryonic stem cell research. What is nice about this is that none of the research that is showing promise for providing cures involves embryonic stem cells.

Sorry, those two always give me trouble. With most such words I can usually tell which one to use, but the difference between the meanings of these two is close enough that I always have trouble noticing when I get it wrong.

Here, I'll put it another way. There's not a person out there who is advocating embryonic stem cell research because they love the idea of irritating religious conservatives. They propose the idea because it has genuine promise. Now I'll be the first to point out that there has been a great deal of promise shown in adult stem cell therapies and that they are absolutely worthy of funding and research. The difference between you and me is your desire to rationalize an ethically founded objection to one av

Well the Embryonic Stem-Cell debate (which isn't what this is about) is what there is debate about, because in order to get these stem-cells you need to terminate the fetus, which is a valid moral debate without thumping the bible, because the PEOPLE who wrote the bible never even considered about thinking things to that detail. Terms of Patents just because they are protecting their patient it doesn't mean they are a Patent Troll. A lot of this type of stuff we really need a good debate on it, without fi

Honestly, Just move to another country that doesn't respect the US patents and start saving lives. I'm sure India would love to have your expertise. There is also the United Arab Emirates, and the other Oil producing nations that are actively building research facilities to help them compete when the oil runs out.

I used to think statements like this were hyperbole but now it seems an unavoidable conclusion. There was a time when America, and "the West" in general, were animated by a respect for science in and of itself.Now there is something deeply broken in our country, it's as if there has been a kind of fundamental rejection of the concept of progress as one of the central aspects of our national identity. The idea that together we can make the future better than the present has seemingly been supplanted by autho

Look, I'm more spineless than that. I don't even have the ability to leave. I'm just very passive aggressive.

The law that bothers me that I have the best chance of changing is the blue law in my county. I would love to go to the Cantina on Sunday after mowing the lawn and enjoying a Dos Equis or Corona; but I can't buy alcohol in my county on Sunday. That would be the first law I wish was changed and I could actively do something about getting it changed. In the mean time I can just drive 20 min nort

China? Horrifying Education System? I used to teach in China. That is not one of China's weaknesses. Lack of law enforcement, yes, lack of education no. I saw an automobile accident, the other person didn't have insurance so the guy who got hit beat the crap out of the guy who hit him. The youth in China are ready for change and much of China is changing with them. They are lacking in some human rights, but their are other areas that make up for it. Cost of living is dirt cheap there, as an American

Remember, this is Slashdot where, despite the election of Darling Obama, the USA is the inner circle of Hell and everywhere else is a Utopic vision of perfection beyond the pale of mortal man where the beer makes you live forever, the kids are doing tensor analysis by age 2, and peoples of all colors, creeds and beliefs dance about arm in arm loving one another.

No one should have the right to patent anything used in the medical field. You create a wonder drug that can cure cancer or something, you have a responsibility as a human being to allow the world to use it.
Besides, if you didn't invent it, screw off.

Double edged sword. It can take decades of time and millions upon millions to spit out one thing useful. Patents give return on investment.

I'd love research done for research's sake too, but pragmatism has this nasty habit of beating the snot out of idealism.

However...Besides, if you didn't invent it, screw off.Damn right. StemCells needs to be staplegunned to the wall for this crap...as well as the Patent Office being held liable too, since someone didn't do their prior art research.

If I lived near Palo Alto, I'd gladly join in picketing Dr. Weissman's house and office. But since I'm 3000 miles away, the best I can do is relay information about him for those of us who need to protest remotely:

When someone develops a technology, their choices are generally to patent it themselves, publish it to give it to the public, or keep the development a secret. If a company indeed developed the technology independently, and there was no making the knowledge public, then the secret-keeper can have a problem. The patent system encourages developments to be made public, but with benefits for doing so. One of the detriments is that if you keep a secret, you may find someone else decides to patent it. Then you are can be an infringer.
This is a rarer instance. Most often in the not-for-profit world, people choose to publish. In fact, early publication is the biggest threat to universities getting patents on professors' developments.

As for the people that donated their dead child's brain to research, those valuable stem cell cultures have been kept in storage instead of being disseminated to research labs (who desperately need them) across the country.

Gotta love some good hyperbole. Not only are they evil corporations, but they are after the brains of dead children!

Executive summery, fourth paragraph:"We have over forty issued U.S. patents, plus foreign equivalents to some fourteen of our U.S. patents and applications, for a total of over one hundred and seventy individual patents worldwide."This company is clearly a patent troll, NOT a technology company. Shame shame shame.

This patent troll has over-extended itself: the researchers will be able to prove their prior-art research and at the end of the day, the StemCells inc. patent will be invalidated - and they have nobody else but themselves to blame.

Which is all well and fine, but in the meantime research is put on hold and the fraudsters (let's be blunt, that's what these guys are) may lose the patent but will suffer nothing else from what amounts to the IP equivalent of forging bad checks. This company is hardly the first. Probably the most famous patent con artists were Alexander Graham Bell and Thomas Edison, both of which have, ironically, come to represent the towering achievers of the modern patent system.

I have been told to document all inventions we come up with at work, even if they are something we would prefer one of our vendors to implement, because if we don't, another vendor could claim it is their IP and keep our vendor from using it.

dissolve as in eventually have a judge rule that the patent isn't valid? As the article points out, CHOC now has to go to court to get that handled. While the patent maybe invalid because of prior art it still takes courts and lawyers and dockets and paper to make this situation "right." What I don't understand is that if there's noprofit motive on the part of CHOC, they're doing research, why they're being prohibited from using the technique anyway? I guess it's like patenting a shovel, if anybody digsa hole can the patent holder prohibit you from having a swimming pool?

I guess it's like patenting a shovel, if anybody digsa hole can the patent holder prohibit you from having a swimming pool?

Only if the swimming pool requires a shovel to build. You'll still be allowed to have a plastic kiddy pool, or you can dig the hole for the swimming pool with a stick. If you use a shovel, though, you have to pay the shovel man.

This happens a lot. The sticking point is often that the patent owner offers the research lab a license to use their technology, but the lab has to sign an agreement to turn over the rights to all the commercially useful results of the lab's research to the patent holder. Often the agreement is so onerous, the researchers refuse to sign.

With the BRCA gene patent that was recently overturned, the lab could do research with the BRCA test for free, but if they found out one of their subjects was positive for t

1) The assesor of the value of a patent have an interest to accept any patents because it makes money for them2) the non profit loophole is useless, because the non profit entity could not do anything with the results, not even give it away for free, the only thing they could do is to give it to the "holder(s)" moreover defining what is non profit and for profit is in practice impossible3) in all case the guy with much money for it's lawyers and nothing